Would gay marriage be a new right or recognition of an existing right?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, says the same-sex marriage fight will come down to a debate about granting a new right to a group of people, or confirming a right that is historically contained in the Constitution.

The statements at issue:

“We do not dispute that states have refused to permit same-sex marriages for most of our country’s history. However, this fact is irrelevant…. Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms…. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.”

– Excerpt from the majority opinion by Circuit Judge Henry F. Floyd for the Fourth U.S. Circuit Court of Appeals, as that court struck down Virginia’s ban on same-sex marriage. The Court divided 2-to-1 in that decision, released on Monday.

“The ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage.’… The majority never asks whether same-sex marriage is a right that is deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed…. The Supreme Court has cautioned that courts must be extremely cautious in recognizing fundamental rights because doing so ordinarily removes freedom of choice from the hands of the people.”

– Excerpt from the dissenting opinion by Circuit Judge Paul V. Niemeyer in the Virginia same-sex marriage case.

We checked the Constitution, and…

The Constitution protects a set of rights that are spelled out explicitly, especially in the first 10 amendments (the Bill of Rights) and in the three amendments adopted in the wake of the Civil War to advance the cause of legal equality and expand the community of rights-enjoying people. But there is also an open-ended promise, in the Ninth Amendment, which says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

That very promise, at least in one interpretation, set America and its institutions on a more or less continuous journey of discovering what those unspecified rights might be. Part of that played out in the civil rights revolution, to make the promises of the post-Civil War 13th, 14th and 15th Amendments available to racial minorities. And part of it came with the women’s rights revolutions and, more recently, the gay rights revolution.

Each one of those historic campaigns has provoked a fierce debate over just what is going on, and how public institutions should react, when a new group, claiming to have been targeted by discrimination, comes forward with a demand for its share of equality. Can that happen without a new constitutional amendment?

One side in that debate has insisted that, if the right is not specifically listed in the Constitution itself, it is illegitimate – especially for courts — to recognize such a right as a new guarantee. What gives a new group, seeking constitutional protection, the right to ask that it get a new right all of its own. Or, so that side asks.

The other side, by contrast, has insisted that the Constitution is a dynamic document, capable of expanding (and actually intended to be expanded), so that rights that are within the broad phrasing of the Constitution can actually be extended to new groups. Why should guarantees of equality of fair treatment be frozen in constitutional time? Or, so that side asks?

That old contest of views is playing out again now, in the nationwide debate – especially within the courts – over same-sex marriage. And how the courts ultimately resolve that contest is almost certainly going to be the key to whether gays and lesbians in America are allowed to get married.

When judges have ruled that gays and lesbians must be allowed, constitutionally, to marry, they have done so on the premise that this would not be the creation of a new right – that is, not a newfound right special to same-sex couples, but a right to join in equally in the existing, traditional right to marry. Those judges have accepted the argument of the same-sex couples that they want nothing more than equal access to the legal opportunity to wed. That, in essence, is the marriage equality argument.

When judges have resisted (most often, these days, in dissenting opinions) the idea that same-sex couples’ choice to marry must be constitutionally protected, they have argued that this would be creating a new and special right, and they have noted that the Supreme Court has actively discouraged the crafting of new rights by constitutional fiat, rather than by constitutional amendment or by the acts of legislatures. That, in essence, is the argument against minting a new right.

Both sides in this exchange can enlist some Supreme Court decisions on their side. After all, the Supreme Court has been working on its interpretation of just what marriage rights encompass for decades – indeed,at least since the late 19th Century. Little by little, the Justices have moved steadily toward the conclusion that, constitutionally speaking, the right to marry is fundamental to the civic order, a right of the highest constitutional rank.

But yet to be decided, at least for gays and lesbians, is this: Just what is the nature of that fundamental right? Is it a sweeping right to choose one’s life mate without interference by government? Or is it a right that is fundamental only because it has deep roots in the traditional definition of one-man, one-woman marriage?

The specific arguments, on both sides, are by now entirely familiar; more than 70 lawsuits are unfolding across America on this issue, and not one of them has produced a new and novel argument. It remains only for judges to choose, because it is by now abundantly clear that it is in the nation’s courthouses, not in its legislative halls or in its political campaigns, that the answer will be given – a constitutional answer.

Philadelphia’s National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center’s blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America’s history and a variety of expert contributors.